B-140957, OCT. 21, 1959

B-140957: Oct 21, 1959

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FEDERAL AVIATION AGENCY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9. IT IS UNDERSTOOD THAT THE SPECIFICATION CHANGES COVERED BY AMENDMENTS 1 AND 2 ARE MATERIAL CHANGES. WAS NOT ACCOMPANIED BY SIGNED COPIES OF THE TWO AMENDMENTS. THE BIDDER CONTENDS THAT THE TWO AMENDMENTS WERE NOT RECEIVED BY IT THROUGH OVERSIGHT OF THE GOVERNMENT AND THAT. THE CORPORATION CHECKED SEVERAL ITEMS SET FORTH ON A SCHEDULE OF COMMODITIES IN WHICH IT WAS INTERESTED. ALTHOUGH MONITOR EQUIPMENT WAS INCLUDED IN THE LIST OF COMMODITIES. THE ORIGINAL INVITATION WAS NOT SENT TO TAMAR ELECTRONICS. TAMAR WAS IN CONTACT WITH THE FEDERAL AVIATION AGENCY CONCERNING THE INVITATION. TAMAR WAS NOT PLACED ON ANY SUPPLEMENTAL BIDDERS LIST AND THEY WERE NOT SENT COPIES OF EITHER OF THE TWO AMENDMENTS TO THE SPECIFICATIONS.

B-140957, OCT. 21, 1959

TO MR. RALPH A. RICH, CHIEF, PROCUREMENT BRANCH, FEDERAL AVIATION AGENCY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1959, ENCLOSING A LETTER DATED SEPTEMBER 29, 1959, FROM TAMAR ELECTRONICS, INC., PROTESTING THE POSSIBLE REJECTION OF ITS BID, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 0-2076B1, AS BEING NON-RESPONSIVE BECAUSE SIGNED COPIES OF TWO AMENDMENTS TO THE INVITATION DID NOT ACCOMPANY THE BID.

THE INVITATION ISSUED ON AUGUST 12, 1959, AS MODIFIED BY AMENDMENTS NOS. 1 AND 2 DATED SEPTEMBER 8 AND 10, 1959, RESPECTIVELY, REQUESTED BIDS TO BE OPENED ON SEPTEMBER 17, 1959, FOR FURNISHINGVHF OMNIRANGE MONITOR EQUIPMENT IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. IT IS UNDERSTOOD THAT THE SPECIFICATION CHANGES COVERED BY AMENDMENTS 1 AND 2 ARE MATERIAL CHANGES.

THE BID SUBMITTED BY TAMAR ELECTRONICS, INC., IN RESPONSE TO THE INVITATION, WAS NOT ACCOMPANIED BY SIGNED COPIES OF THE TWO AMENDMENTS. HOWEVER, THE BIDDER NOW HAS SIGNED THE TWO AMENDMENTS AND REQUESTS THAT THEY BE CONSIDERED AS A PART OF ITS BID. THE BIDDER CONTENDS THAT THE TWO AMENDMENTS WERE NOT RECEIVED BY IT THROUGH OVERSIGHT OF THE GOVERNMENT AND THAT, THEREFORE, THE BIDDER SHOULD BE PERMITTED TO AGREE TO CONFORM TO THE AMENDMENTS AT THIS TIME.

THE RECORD SHOWS THAT ON JUNE 11, 1959, TAMAR ELECTRONICS, INC., FILED AN APPLICATION, STANDARD FORM 129, WITH THE FEDERAL AVIATION AGENCY TO BE PLACED ON THE BIDDER'S MAILING LIST FOR CERTAIN COMMODITIES. THE CORPORATION CHECKED SEVERAL ITEMS SET FORTH ON A SCHEDULE OF COMMODITIES IN WHICH IT WAS INTERESTED. THE CORPORATION DID NOT REQUEST TO RECEIVE BIDS FOR MONITOR EQUIPMENT, ALTHOUGH MONITOR EQUIPMENT WAS INCLUDED IN THE LIST OF COMMODITIES. THEREFORE, THE ORIGINAL INVITATION WAS NOT SENT TO TAMAR ELECTRONICS, INC., AS FEDERAL AVIATION AGENCY HAD NO KNOWLEDGE OF THE CAPABILITY OF THE CORPORATION IN THIS FIELD. HOWEVER, TAMAR LATER LEARNED OF THE INVITATION AND OBTAINED A COPY THEREOF FROM FEDERAL AVIATION AGENCY OFFICIALS. ALSO, BY TELEGRAMS OF SEPTEMBER 2 AND 10, 1959, TAMAR WAS IN CONTACT WITH THE FEDERAL AVIATION AGENCY CONCERNING THE INVITATION. NEVERTHELESS, THROUGH ADMINISTRATIVE ERROR, TAMAR WAS NOT PLACED ON ANY SUPPLEMENTAL BIDDERS LIST AND THEY WERE NOT SENT COPIES OF EITHER OF THE TWO AMENDMENTS TO THE SPECIFICATIONS.

ALTHOUGH IT IS UNFORTUNATE THAT TAMAR WAS NOT SENT COPIES OF THE TWO AMENDMENTS, THE FACT REMAINS THAT AT THE TIME OF THE OPENING OF THE BIDS ON SEPTEMBER 17 THE TAMAR BID DID NOT PROPOSE TO FURNISH EQUIPMENT COMPLYING WITH THE SPECIFICATIONS AS AMENDED AND, THEREFORE, THE BID WAS NON-RESPONSIVE TO THE INVITATION. WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE COPIES OF INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR A MODIFICATION THEREOF AFTER THE TIME FIXED FOR THE OPENING OF THE BIDS. SEE 37 COMP. GEN. 785.

ACCORDINGLY, YOU ARE ADVISED THAT THE COPIES OF THE AMENDMENTS EXECUTED BY TAMAR ELECTRONICS, INC., AFTER THE OPENING OF THE BIDS MAY NOT BE ACCEPTED, AND THAT THE BID MUST BE CONSIDERED AS BEING NONRESPONSIVE TO THE INVITATION FOR BIDS AND MUST BE REJECTED.